State v. Collins

• Decision Date: 09 December 1970
• Docket Number: No. 69-680,69-680
• Citation: 53 O.O.2d 302,265 N.E.2d 261,24 Ohio St.2d 107
• Parties: , 53 O.O.2d 302 The STATE of Ohio, Appellant, v. COLLINS, Appellee.
• Court: Ohio Supreme Court

Page 107

24 Ohio St.2d 107

265 N.E.2d 261, 53 O.O.2d 302

The STATE of Ohio, Appellant, v. COLLINS, Appellee.

No. 69-680.

Supreme Court of Ohio.

Dec. 9, 1970.

Syllabus by the Court

The state may not prosecute an appeal in a criminal case from an order sustaining a pre-trial motion to suppress evidence.

On December 8, 1968, appellee was arrested and charged with violating R.C. 4301.58 and R.C. 4399.09.

Complaining that evidence against him had been unlawfully obtained, appellee filed a pre-trial motion to suppress, which was sustained by the trial court.

Appellant's leave to file a bill of exceptions in the Court of Appeals was denied. The cause is now before us pursuant to our allowance of appellant's motion to certify the record.

Paul W. Brown, Atty. Gen., John A. Connor, II, Columbus, and Joseph T. Clark, Lancaster, for appellant.

Robert U. Hastings, Jr., Lancaster, for appellee.

HERBERT, Judge.

The question before us is whether the state, in criminal case, may prosecute an appeal from an order granting a defendant's pre-trial motion to suppress evidence.

Section 3 of Article IV of the Ohio Constitution, pertaining to the jurisdiction of the Court of Appeals, provides, in part:

'* * * Courts of Appeals shall have such jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or final orders of the courts of record inferior to the Court of Appeals within the district * * *.'

This, and former analogous language, has been held to empower the General Assembly to alter the appellate jurisdiction of the Court of Appeals. Youngstown Municipal Ry. Co. v. Youngstown (1946), 147 Ohio St. 221, 70 N.E.2d 649. See Price v. McCoy Sales & Service, Inc. (1965), 2 Ohio St.2d 131, 135, 207 N.E.2d 236. Cf. Meyer v. Meyer (1950), 153 Ohio St. 408, 414, 91 N.E.2d 892, and Pilgrim Distributing Corp. v. Galsworthy, Inc. (1947), 148 Ohio St. 567, 576, 76 N.E.2d 382.

In implementing its authority in this regard, the General Assembly has enacted numerous statutes governing appeals in civil and criminal cases, the mention here of which is intended to bear solely upon the question raised in the instant case. For example, R.C. Chapter 2953 contains statutes governing criminal appeals from judgments or final orders and R.C. Chapter 2505 apparently purports to control appeals of all types not provided for in other sections of the Revised Code. From R.C. 2505.02 we glean the embattled 'final order' definition, and R.C. 2505.03 directs that such orders are appealable as therein prescribed. It has long been logically considered that the definition of 'final order' appearing in R.C. 2505.02 applies to the use of that term in other sections of the Revised Code, including those concerned specifically with criminal appeals. State v. Miller (1953), 96 Ohio App. 216, 121 N.E.2d 660. Therefore, the first step in settling the question presented here is the determination of whether a trial court's sustaining of a motion to suppress evidence in a criminal case is a final order.

The General Assembly has stated, with judicial approval, that a final, and hence appealable, order is, inter alia, 'an order affecting a substantial right made in a special proceeding.' R.C. 2505.02. Research discloses that courts have not been eager to permit enterprising counsel to ease into the appellate chair by attaching to their various causes the appellation 'special proceeding.' This judicial reluctance has an obvious and sound foundation.

In In re Estate of Wyckoff (1957), 166 Ohio St. 354, 142 N.E.2d 660, Judge Zimmerman spoke for a unanimous court in quoting from Missionary Society of the M. E. Church v. Ely (1897), 56 Ohio St. 405, 47 N.E. 537:

"Our Code does not, as does the Code of New York, specify that every remedy which is not an action is a special proceeding, nor does (sic) our statutes give any definition of an action or a special proceeding. But we suppose that any ordinary proceeding in a court of justice, by which a party prosecutes another for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense, involving the process and pleadings, and ending in a judgment, is an action, while every proceeding other than an action, where a remedy is sought by an original application to a court for a judgment or an order, is a special proceeding."

Further, at page 358 in the opinion, at page 664 of 142 N.E.2d and citing Schuster v. Schuster, 84 Minn. 403, 407, 87 N.W. 1014, 1015, Judge Zimmerman quoted:

"Where the law confers a right, and authorizes a special application to a court to enforce it, the proceeding is special, within the ordinary meaning of the term 'special proceedings."'

While most modern courts have been less than precise in defining 'special proceeding' and some encyclopedias appear to say only that 'if it isn't ordinary it is special,' we conclude that a pre-trial proceeding on a motion to suppress evidence in a criminal case is a special proceeding within the meaning of R.C. 2505.02.

This conclusion is admittedly not reached without some hesitation, especially in view of the root origins of the term 'special proceedings.' (See Fields v. Fields (1950), 88 Ohio App. 149, 94 N.E.2d 7; William Watson & Co. v. Sullivan (1855) 5 Ohio St. 42, 43.) However, later cases permit this result and we are convinced that modern exigency must not be left unattended solely upon the basis of academic genealogy.

Questions still remain, however, one of which is whether the order in the instant case was 'an order affecting a substantial right.' R.C. 2505.02. The record herein leaves no doubt that this was such an order. The appellant represented in oral argument that the deprivation of the use of the evidence suppressed below rendered it virtually impossible for the state to obtain a conviction, and that without that evidence the prosecution would be terminated. Society has a most substantial right to the diligent prosecution of those accused of crime, and where prosecution is irretrievably foreclosed through the suppression of evidence, that right is clearly and adversely affected.

It must be kept in mind that the state has no right of criminal appeal, except as discussed hereinafter; thus, the state is in a position distinctly different from that of an accused. The latter, if his motion to suppress is overruled, may challenge the correctness of that order in appellate proceedings following his conviction. But if the motion be sustained, and the evidence thereby suppressed is essential to prosecution, in the absence of a review of that order the case is concluded and the accused is released.

In view of the instant record, it was argued that the ruling below was 'an order affecting a substantial right in an action which in effect determines the action and prevents a judgment.' R.C. 2505.02. In reality, however, the action was not 'determined'-charges still pend against the appellee and the action would continue upon reversal. Therefore, in the case at bar, we reject the contention that this latter premise would serve as a logical basis for determining the sustaining of a motion to suppress to be a final order.

Since we have determined this order to be final, our next inquiry is directed to R.C. 2505.03:

'Every final order * * * may be reviewed as provided in Sections 2505.04 to 2505.45, inclusive, of the Revised Code, unless otherwise provided by law * * *.' (Emphasis added.)

The emphasized language requires us to face R.C. 2945.70 and it is here that we arrive at an unfortunate impasse. That section provides:

'If the court of appeals or the supreme court is of the opinion that the questions presented by a bill of exceptions should be decided, it shall allow the bill of exceptions to be filed and render a decision thereon. This decision shall not affect the judgment of the trial court in said cause, nor shall said judgment of the trial court be reversed, unless the judgment of the court of appeals or the Supreme Court reverses the judgment of the trial court on its ruling on a motion to quash, a plea in abatement, a demurrer, or a motion in arrest of judgment. In all other cases the decision of the court of appeals or the supreme court shall determine the law to govern in a similar case.' (Emphasis added.)

By permitting state appeals only in the four instances delineated ¹, the clear commandments of this statute obviously forbid an appeal such as the one at bar.

Appellant contends, however, that those four categories are susceptible to expansion. In support of this argument our attention is directed to the fourth paragraph of the syllabus in Euclid v. Heaton (1968), 15 Ohio St.2d 65, 238 N.E.2d 790, which states:

'Sections 2945.67 to 2945.70, inclusive, Revised Code, are unconstitutional insofar as they permit the prosecutor in a criminal case to institute proceedings to review a judgment of the trial court, except where the judgment of such court decides 'a motion to quash, a plea in abatement, a demurrer, or a motion in arrest of judgment,' or the equivalent thereof.' (Emphasis added.)

The phrase 'or the equivalent thereof' does not appear in the text of R.C. 2945.70. Yet, appellant maintains that this language in Heaton sought to expand the scope of prosecution appeals beyond the four categories enumerated in R.C. 2945.70. We think it clear that a careful perusal of the Heaton majority opinion discloses that the opposite is true, but it is unnecessary for us to decide the matter because a motion to suppress evidence is not equivalent to a motion to quash, a plea in abatement, a demurrer, or a motion in arrest of judgment.

A motion to quash, a plea in abatement, and a demurrer are procedural methods by which the accused may except to an indictment. R.C. 2941.53. A motion in arrest of judgment may be made by an accused after judgment in an effort to place himself in a like position with respect to the prosecution as before the...